The American Association for Justice is recruiting member lawyers to go to Nevada as "election protection volunteers" to support Sen. Harry Reid. The e-mail solicitation was posted at the Fix Pacifica blog, and we've uploaded a copy here. Excerpt:

We've heard the reports about the situation in Nevada. The Angle campaign is already employing voter intimidation techniques aimed at suppressing the Democratic vote. In the state of Nevada, anyone who is a listed as a registered voter can cast their ballot. Try and imagine what the future will hold if we don't have Harry Reid in the Senate. He is a staunch advocate for trial lawyers and the clients they represent, and has fought tirelessly to stop tort reform efforts in the Senate. Don't let the GOP scare people away from the polls. Be an advocate. Volunteer to be a poll watcher today.

• Factcheck.org does a reasonable job reporting on the campaign advertising and politics in the Supreme Court election in Michigan and court retention elections in Illinois and Iowa. However, the piece, "Court Watch: Mudfest 2010," understates the scurrilousness of the attacks against Bob Young, seeking re-election to the court in Michigan. See Detroit Free Press editorial blog post by Stephen Henderson, "Dems cross the line with bigoted Supreme Court ad."

• Two seats are open on the Michigan Supreme Court, which go to the top two finishers. In a new poll, the two Republicans, Young and Mary Beth Kelly, have opened up substantial leads on the two Democrats, Alton Davis and Denise Langford Morris. (Disclosure: Young was appointed to the court by Gov. John Engler, now my boss at the National Association of Manufacturers.)

• The Democratic Senate candidate in Iowa, Roxanne Conlin, is the former president of the Association of Trial Lawyers of America. Her campaign has gained little purchase against Sen. Charles Grassley (R-IA).

• News release, The Civil Justice Association of California, "SACRAMENTO, Calif.--(BUSINESS WIRE)--California plaintiffs' lawyers spent another $150,000 this week to help elect Dave Jones as the state's new Insurance Commissioner, bringing their total investment in the race to $644,400, the Civil Justice Association of California reported today."

• The Southeast Texas Record (supported by the U.S. Chamber) reports, "Texas trial lawyers spend $13M in 2010 election cycle": "Texas trial lawyers surpassed their 2008 benchmark for campaign spending, shelling out $13.6 million so far in 2010, with famed Houston hurricane attorney Steve Mostyn providing almost half the cash."

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Plaintiff-friendly procedures in infamous judicial hellhole Madison County are "a cautionary tale about the power of procedural 'innovations,' the ability of a judge or judges in one location to impact the entire national system of litigation, the extreme mobility of asbestos claims and the tyranny of economic incentives." [ILR; LNL]

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After the leak of this Larry Tribe letter, we perhaps know who bad-mouthed Sonia Sotomayor to Jeff Rosen. The bad-mouthing of Justices Breyer and Kennedy (and smear of Diane Wood) are also in there. Don't miss the last-paragraph flattery. Above the Law unusually ignores the juicy story. [Whelan @ NRO; more; more]

State attorneys general demand that banks be more lenient with mortgage foreclosures, sue banks for being too lenient. [Jenkins @ WSJ via Stoll]

Credit scores are handy ways to predict job performance in hiring. So the EEOC is naturally against it. [OL]

New York state retroactively rewrites every mortgage in the state to forbid one-way fee-shifting. [NYLJ]

A must-read article and book on the counterproductiveness of humanitarian aid: "If you use enough violence, aid will arrive, and if you use even more violence, even more aid will arrive." [New Yorker ($); The Crisis Caravan]

An entertaining polemic from a master of the art against Richard Blumenthal, but his Senate-race lead appears insurmountable. [Coulter]

Prominent Florida attorney Henry "Hank" Adorno suspended by Florida Supreme Court and faces disbarment for a remarkable breach of fiduciary duty in negotiating a class action settlement that wasn't a class action settlement. One can see why he's surprised, given that his explicit collusion with defendants to cheat the class was different only in degree to standard class action plaintiffs' attorneys' practice. The Miami city attorneys on the side of the settlement, who claimed to have been snookered, haven't faced any discipline, despite what was effectively a stunning admission of incompetence. [Miami Herald; S. Fla. Bus. J.; major filings in case; Masztal v. Miami]

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George Will does not think much of Connecticut Attorney General Richard Blumenthal, running for the U.S. Senate against wrestling impresaria Linda McMahon. In today's column, Will provides telling examples of Blumenthal's penchant for falsehood.

On MSNBC he intimated that he would not take "special interest" or PAC money, promising fundraising "from ordinary citizens." But he flew to Vancouver, British Columbia, for a PAC fundraising event for him and 11 other Democratic Senate candidates. Blumenthal said it was not for Harry Reid. Hartford Courant columnist Kevin Rennie reports that the invitation to the event and documents filed with the Federal Election Commission say Reid was among the beneficiaries. Blumenthal says it was an opportunity to discuss problems "affecting ordinary people." Rennie says the top ticket price was $43,200.

Oh, to be George Will's editor. The fundraiser that Blumenthal flew took place at the annual convention of the American Association for Justice, most definitely not "ordinary citizens." More like a special interest, but in any case, a connection that needed to be made.

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I cast an early ballot in Washington, D.C., last evening, preparing to become one of the many undervotes on every race. There are candidates for U.S. Representative? When did the states ratify that constitutional amendment? (DC Voter Guide)

As a matter of practical politics, this is a terrible idea. The District of Columbia is a one-party state district, in which the winner of the Democratic primary will be a shoo-in for AG. Two kinds of candidates seem likely to succeed: a populist promising to bring down business and redistribute wealth, or a glib practitioner of cynical politics with access to trial lawyer contributions. Or a combination of both.

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I'm honored that Skadden's John Beisner, one of the world's leading class action attorneys, Jessica Miller, and Jordan Schwartz today released a new paper on cy pres that heavily relies upon my work and the work of the Center for Class Action Fairness in the AOL case, even singling out that case as an example of abusive cy pres.

A recent piece of perfervid direct mail from Public Citizen demands criminal prosecution of BP executives, calling the company "a reckless criminal recidivist corporation. With a long rap sheet." Read the letter here. The litigation will continue for years, but is the outrage over the Deepwater Horizon accident sustainable as a fundraiser without new photos of begrimed shore birds?

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According to the Kaiser Foundation's Health Reform Subsidy Calculator (via IBD), a 62-year-old in a high-cost area earning $46,000 a year without health insurance is entitled to a $7,836 government tax credit. Leaving aside how our strapped government can afford that, here's what's interesting: if the same person makes a mistake and earns an extra $22 in income, he loses the entire $7,836 credit. (The cutoff, according to Kaiser, is between $46,021 and $46,022.) That's a 35,618% marginal tax rate. Indeed, the problem is so severe that our 62-year-old subject will have more take-home pay if he earns $46,000 than if he earns $55,000. And even at lower income levels, there is as much as a 16% surcharge on income at the margin.

It's been trendy to sneer at those who label the Obama administration's policies as socialism, but even under socialism, the government doesn't punish you and make you worse off for working more. This is just public policy malpractice.

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Mickey Kaus, tongue-in-cheek, suggests a conspiracy is behind all the attention former Bush administration officials are getting shortly before the mid-term elections. If so, the Texas Lawyer puff piece on Harriet Miers is part of the conspiracy. The article, mostly about Miers's career and successful post-Bush-administration lobbying practice, engages in some historical revisionism regarding the unsuccessful Miers nomination (as Jan Crawford documented, Miers's inability to handle basic question on constitutional law was why the Bush administration pulled the plug). But Miers provides a quote that validates conservatives' concern about her acuity on the bench: "In an exclusive interview with Texas Lawyer, Miers instead turns the conversation away from herself to make an argument for more women judges. 'I don't think three is sufficient,' she says." Paging Heather Mac Donald.

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MI's Heather Mac Donald has a must-read piece on the Vulcan Society disparate impact employment discrimination litigation, where Judge Nicholas Garaufis has gotten just about every piece of public policy wrong, and made faulty factual findings bootstrapped on other faulty factual findings, all at the expense of New York City taxpayers and those who seek competent firefighters.

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San Francisco: San Francisco Metro Transit Authority & the Public Utilities Commission of California order a startup to cease and desist offering an app by which smartphone users can order car service. [TechCrunch via M.C.]

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As you may recall, the plaintiff in Wolk v. Olsonimmediately appealed the district court ruling dismissing his libel case. Plaintiff has asked the Third Circuit to certify questions of state law to the Pennsylvania Supreme Court; defendant-appellees, through their attorneys White & Williams and the Center for Individual Rights have filed an opposition to that motion. The appellees' brief is due November 5; amicus briefs in support of appellees are due November 12.

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Ira Stoll and Jim Copland have discussed the outrageous Apple backdating lawsuit resulting in the outrageous Apple backdating settlement. The magnitude of the settlement compared to the original claims demonstrates that it is an extortionate nuisance settlement, being made because it would cost more to defend the suit than to pay the attorneys to go away.

But it should be noted: the settlement is not just outrageous, it is illegal. Under the Ninth Circuit's Six Mexican Growers precedent, a court should not be issuing cy pres that is not likely to benefit the class members. And as the Center for Class Action Fairness noted in recent Ninth Circuitbriefing, the American Law Institute has said that cy pres is inappropriate where class members are readily identifiable. Given that the class attorneys are negotiating money for third parties instead of their own putative clients (for their own benefit, no less), there is also a breach of fiduciary duty that raises questions whether the class attorneys meet the Rule 23(a)(4) standard. The settlement is further problematic in that the vast majority of class members are entitled to zero compensation; it is far from clear that the sole lead plaintiff is a member of this subclass.

The Center for Class Action Fairness (which is not affiliated with the Manhattan Institute) would love to object to such a blatantly illegal settlement. But it can't do so in a vacuum: it can only do so on behalf of a class member who is being ripped off by these attorneys. Class members are those who bought Apple stock (AAPL) between August 24, 2001 and June 29, 2006—but only people who bought the stock between November 2005 and May 2006 are entitled to recover any money under the settlement, and their recovery is being diluted by the excessive demand for attorneys' fees and diversion to cy pres. We'd be happy to represent you pro bono if you agree that the settlement is objectionable and wish to object: please contact me. If you're not in the class, but know people or institutions who might be, spread the word.

Ohio Court of Appeals: no class action against Best Buy for complying with state law in stove installation. The case was particularly egregious given that the "defrauded" lead plaintiff, who spent an extra $68 to come into compliance with state law, got a $75 gift certificate from Best Buy for his trouble. [Jackson]

Robbins Geller (which used to be Coughlin Stoia which used to be Lerach Coughlin) hires lobbyists to promote securities litigation in Dodd-Frank regulations. [BLT]

In West Virginia, feds not being fooled by Darrell McGraw creating slush funds with settlements when he was supposed to be reimbursing Medicare. [LNL]

Indictment of Georgia federal judge on drug charges giving rise to challenges to his decisions, including by a vegan group that didn't get attorneys fees after the won only four dollars in a lawsuit. [AJC; WSJ Law Blog]

MI's Kay Hymowitz quoted on academia's rediscovery of the importance of culture in evaluating poverty. [NYT]

The U.S. Supreme Court on Wednesday, Oct. 13, heard oral arguments in Kasten v. Saint Gobain Performance Plastics, a case that has the potential to dramatically expand litigation under the Fair Labor Standards Act.

The National Association of Manufacturers, my employers, dislikes that possibility and has joined in an amicus brief in support of Saint Gobain. As our case summary explains, the lawsuit comes from an employee who orally complained about the placement of a time clock during a period of months in which he received discipline for time-clock violations. When he was terminated after the fourth offense, he sued his employer, alleging a violation of the anti-retaliation provision in the Fair Labor Standards Act. That provision makes it unlawful for an employer to terminate an employee because such employee has "filed any complaint . . .under the Act."

A transcript of the oral arguments, which featured discussion of the possibility of "filing" a complaint at a cocktail party, is online here. Is it a formal complaint is the employee has had one drink? Two? How about the supervisor?

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CEI's John Berlau and Professor J.W. Verret are critical of the forthcoming General Motors IPO because the prospectus warns that the government will assert sovereign immunity to claims brought under the securities laws.

This is the wrong way to look at it.

Recall that the claim of supporters of expansive securities litigation is that such securities litigation promotes faith in the marketplace. Coincidentally, this claim about faith is faith-based, as there is no empirical evidence that the marginal benefits of civil securities litigation (over and above existing criminal liability for intentional fraud) outweigh the costs to shareholders from paying lawyers for all the false negatives and extortionate settlements that shift wealth from one group of shareholders to another with a 25% carrying fee.

But when push comes to shove, the government, in deciding what is the best legal regime to maximize wealth from an initial public offering, chooses to assert sovereign immunity to avoid the expense of potential securities litigation. Nothing stops the government from waiving sovereign immunity (or, if the executive branch does not have the power, asking the Democratically-controlled Congress to do so) if it thought that the availability of civil litigation would increase the government's return on this IPO.

The question now becomes: why not allow other corporate entities to opt out of the expensive federal securities regulation? Let shareholders vote on the proposal at the same time as board of directors elections. Investor choice will dictate the result: shareholders who believe that they're better off in a world where lawyers get to waste executives' time with meritless lawsuits can invest in companies that announce that they're not opting out. The marketplace can decide which legal regime is better, and the academics will have nothing to argue about.

As a proponent of securities law reform, I'm willing to put up or shut up on this issue: I think investors will prefer a world where corporations take the same stance that the US government is taking in the General Motors IPO, and if the empirical evidence from this experiment proves me wrong, I'll change my mind and stop advocating for a change in the laws. The question is why supporters of the status quo aren't willing to empirically test whether shareholders would prefer the status quo.

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As a connoisseur of hot-coffee cases, I'm always excited to see a court get one right. The Abnormal Use blog points us to Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010). The plaintiff made the usual gamut of "design defect" and "failure to warn" claims, but the court wasn't buying it. Note that the plaintiff claimed to be injured by the coffee at Sonic Restaurants, yet another refutation of the trial-lawyer claim that Stella Liebeck's McDonald's coffee was unusually hot.

Now that the 33 Chilean miners have been rescued, a top lawyer is preparing to sue for damages. He is unwilling to say how much he will ask for, but he expects it to be an open-and-shut case. In the meantime, he is waiting for things to calm down before he makes his first move.

U.S. manufacturers produced some of the tools that aided in the rescue of the Chilean miners. One wonders whether U.S. lawyers will provide their expertise, as well.

Shortly after meeting with Reinoso, Mayor Gonzalez mentioned a sum. She felt that $1 million (€709,000) per miner would be suitable compensation. In Chile, damage suits function in much the same way as they do in the United States. Reinoso will be paid a percentage of the damage award. If he loses the case, he will have provided his services free of charge. But if he wins -- and Reinoso doesn't even take on cases he thinks he could lose -- he will be entitled to some of the money.

"How much will that be?" Reinoso smiles. "Oh, it's just money. Let's talk about art instead. Let's ignore all the fuss out there."

Yep, lots of similarities.

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SCOTUSblog: "The Court limited its review of the new terrorism case (Ashcroft v. Al-Kidd, 10-98) to two issues: whether Ashcroft is entitled to absolute immunity in a case involving a detention under the federal 'material witness' law, and whether he is entitled at least to qualified immunity to a Fourth Amendment claim." The Court will not be reviewing the applicability of Iqbal to the case, even though the theory of Attorney General Ashcroft's liability was far removed from the line prosecutor who held the plaintiff for fifteen days as a material witness. Justice Kagan has recused herself from the case, so Ashcroft effectively starts down 1-0, since a 4-4 split is the same as a 5-4 loss. Earlier discussion of the Ninth Circuit ruling (598 F.3d 1129 (9th Cir. 2010)): Thornburg @ WLF; Samp @ WLF; Samp @ WLF.

The higher cap would only apply in cases where the defendants are grossly negligent--a higher standard than under current law--and would apply retroactively to Sept. 12, 2008, the day a texting Metrolink engineer ran a red light, causing a collision with a Union Pacific train in Chatsworth, CA. Twenty-five people died and more than 150 were injured in that crash. Most of the victims were from Gallegly's congressional district.

"I met with many of the victims of the crash last month," Gallegly said. "Through no fault of their own, many now have injuries that will require a lifetime of medical treatment. Others lost a spouse or parent who was their primary means of support. The current cap will not even meet the medical needs of the survivors of one of the worst passenger train accidents in modern history. My bill is designed to address that."

Retroactive liability, eh? In any case, the bill has gone nowhere.

As for keyless ignitions, the litigation industry seems to have spotted this issue when casting a wide net against Toyota, suing over accidents supposedly caused by sudden acceleration. The AAJ's disclosure form lists the National Highway Traffic Safety Administration as agency it lobbied, along with Congress. Of course, the NHTSA's own investigations indicate that driver error -- stepping on the accelerator instead of the brake -- appears at blame for the accidents.

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New York's chief judge, Jonathan Lippman, has been holding hearings on an expansive new idea: establishing a right to an attorney so that, courtesy of taxpayers, low-income New Yorkers can have free legal representation in a wide range of cases from evictions to divorces to job and welfare disputes and more. But such a program will not have the results Judge Lippman and other well-meaning advocates desire.

Read the whole thing. Unfortunately, the headline somewhat misstates my views: I don't oppose giving the poor free attorneys in all situations (as the oped itself makes clear), just the idea that there is a "right" to a free attorney at taxpayer expense in a civil case. More on the Lippman hearings: NY Daily News; WSJ; NYT. None of the press accounts have mentioned how one-sided the "hearings" are; show-trial rallies are more like it. More detail on my opposition to civil Gideon, plus my appearance at a CAP/ACS panel.

Last week, the National Association of Home Builders, Window and Door Manufacturers Association, the National Association of Manufacturers, the Chamber of Commerce of the United States of America, the American Architectural Manufacturers Association, and the Center for Class Action Fairness filed an amicus brief in support of the petition.

An argument that we did not make that I wish we did: when district court judges certify unworkable class actions, it's not just defendants who want to settle. Class attorneys don't want to force the case into an unworkable trial, either, because they risk decertification if the judge wakes up. And that hurts consumers, because the class attorneys then have every incentive to agree to a settlement that pays their fees while leaves the class in the cold. The only winners when a district court makes this sort of bad certification decision are the lawyers.

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According to press releases from Senator Kirsten Gillibrand, the 9/11 Health Bill will bypass Senate committee hearings and be place on a "fast track":

In late September, the U.S. House of Representatives, with the bipartisan support of 17 Republican Representatives - voted to pass the James Zadroga 9/11 Health and Compensation Act. The bill was immediately sent to the U.S. Senate, where, at Senator Gillibrand's request, the Senate Majority Leader Harry Reid invoked Senate Rule 14 Process, which will fast track the bill to floor consideration, bypassing the much longer and uncertain committee consideration process that the vast majority of bills undergo.

Through the fast track process, the legislation will be added to the Senate's vote schedule shortly after the next legislative session resumes, on November 15th. Negotiations on the legislation will begin immediately, making it available for a floor vote at the start of the next Senate work period. While this process does not guarantee passage, it does remove obstacles including the committee process, which could stall the bill for months or it kill it before it is brought to the floor.

This is a well-meaning but bad idea, for reasons I explained in my March 31, 2009 testimony and answers to Rep. Sheila Jackson-Lee. Though I made several suggestions on how the bill could be improved to avoid what will be inevitable multi-billion-dollar fraud on the taxpayers, they were all ignored in the House. The bill also hurts America's ability to respond to future terrorist attacks by taxing innocent third-party volunteers' liability insurance for the benefit of trial lawyers—thus guaranteeing that any liability insurer worth its salt will refuse to insure contractors and subcontractors who volunteer to help in the aftermath of the next terrorist attack.

AP investigation shows that New York pays $96M/year to settle lawsuits against police; Chicago even more per capita. But the reporter doesn't quite seem to grok the concept of nuisance settlements. Peter Vallone is sponsoring a bill requiring the city to fight more cases. [AP/NYT via @walterolson]

None of this excuses the actions of banks that falsified affidavits, did not properly transfer mortgage notes and lien documents, forged documents, and sold shoddily securitized mortgages to investors. But the wronged party in these situations is not the defaulting borrower--it's the investors in the banks, the courts, the buyers of the securities, and the broader American public.

It's actually a bit sickening to hear defaulted borrowers describing the misdeeds of banks as "mortgage fraud." What some banks have done might well be fraud--but the fact of that fraud doesn't erase the other fact that the borrower agreed to make payments or face the penalty of losing her home.

"These companies that are too big to fail apparently also think they're also too big to comply with the law of the land and it's beyond outrageous," D'Amelio's lawyer tells CNNMoney.

Maybe I've missed something here. Can someone please explain why banks being 'too big to fail' should mean that D'Amelio should get to live in a house she hasn't paid for?

Relatedly: Arnold Kling in the Washington Times calls for reform of our title system ("The real winners will be lawyers, whose eyes shine with the dollar signs of class-action lawsuits. In fact, as you read stories about the foreclosure scandal, you should realize that it is in the interest of lawyers to feed reporters the most lurid tales of improper behavior, the better to whip up public support for a settlement in the hundreds of millions of dollars, much of which will go to the litigators."), and a suit by purchasers of Countrywide mortgage-backed securities fails.

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Ted Frank, adjunct fellow at the Manhattan Institute, sees more than an unpaid bill on the horizon. "The worst part of the bailouts was the way the administration used political threats to trample over established bankruptcy law and settled expectations," he says "In the long run, the bailout will cost far more jobs than it saves, even in the unlikely event that GM and Chrysler pay back the government in full."

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In this Article, I argue that legislators have a duty to read the text of proposed legislation before voting to enact it. A Read the Bill political movement has formed in response to recent high-profile instances of rushed legislation. Putting aside partisan concerns, a rushed legislative process creates real problems because it forces legislators to vote on bills without having the time to properly evaluate the new legal rules that are being imposed on citizens. If a rule or norm of reading the bill can slow the legislative process enough to provide for thorough consideration of proposed legislation, it would bring a substantial benefit in the form of better laws. The rule would also draw the attention of legislators to their primary, fundamental role of making good law.

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Robot cars have the potential to save thousands of lives and double highway capacity. But it's hard to imagine them ever becoming commercially available without some tremendous change in existing law. Current traffic laws require the technology to be able to be overridden by a human driver. And the American legal system's poor track record in sudden-acceleration cases suggests that trial lawyers and juries are often going to blame the technology and the deep pocket in the event of human error. Because a Google cannot collect millions of dollars for each of the lives they save through robot cars, but will be assessed that amount (in attorneys' fees alone) every time a driver of a robot car kills or injures someone, product-liability law may well make the roads far less safe in the short- to medium-term. Even if liability concerns merely delay the technology five years (and I think the effect will be larger than that), we're talking tens of thousands of lives that will be lost because of our current justice system.

Note that federal preemption comes into play here. Clear-cut federal regulatory standards that preempt state tort law could break the Gordian knot; but under trial lawyers' and the Obama administration's upside-down view of federalism, a single state's tort law could dictate the national marketplace for these vehicles. A manufacturer cannot be protected by one state's tort reform, because they're still potentially liable if a driver takes the vehicle into a different state with a more backward law. This problem that is only going to get worse if the Supreme Court adopts the Obama DOJ's position in Williamson v. Mazda Motor.

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Trial lawyers often say that they care about access to justice, but that principle seems to go out the window when it comes to objectors to unfair class action settlements that might interfere with attorneys' fees.

In Dewey v. Volkswagen, currently pending on appeal in the Third Circuit (10-3618, consolidated with 10-3506, 10-3617, 10-3798, and cross-appeals 10-3651 and 10-3652), the plaintiffs' attorneys have asked for an oversized appeal bond explicitly to prevent the appeal from taking place.

Plaintiffs claim that such an appeal bond is necessary to prevent "extortion" on appeal, the problem where a "professional objector" seeks to hold up the payment of the settlement attorneys' fees with a meritless appeal in the hopes that the class attorney will pay some fraction of the time value of money to get the objector to drop the appeal.

The Center for Class Action Fairness took the plaintiffs at their word, and, in the Center's brief opposing the appeal bond, cross-moved for a different remedy: an injunction against extortionate settlements of the objection. Such an injunction, by requiring court approval of any withdrawal of the appeal, would do far more than an appeal bond to deter the attempt to settle a case for a quid pro quo payment to the objector without any benefit to the class. We suggested, however, that the plaintiffs' attorneys weren't really concerned about extortionate appeals (which permit them to escape appellate scrutiny at relatively low cost) so much as the fact of appeal.

Sure enough, the class counsel opposed the Center's cross-motion for injunction, though on remarkably flimsy grounds that insultingly presuppose a lack of intelligence on behalf of the magistrate; surely they don't expect that the judge will be confused by the difference between a merits injunction and an injunction regarding the conduct of the parties on appeal? You'll also note that the plaintiffs completely changed their theory behind the reasoning of the appeal bond without ever addressing the Center's arguments in their reply brief, but one hopes the district court isn't so easily fooled by sandbagging.

(The Center for Class Action Fairness is not affiliated with the Manhattan Institute.)

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As Congressional control over the economy grows, political actors can take advantage of their inside information in the stock market in anticipation of how political actions will affect the stock price. [WSJ via Adler @ Volokh; Bainbridge]

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For years, I've wanted to write a piece rebutting the claims of the litigation lobby and academics who dispute the existence of the litigation explosion by relying on the misleading statistic that the number of cases have gone down. Lester Brickman has preempted me by noting the "large scale undercounting" that fails to account for mass torts and class actions consolidating thousands or millions of claims in a single lawsuit. For example, even as the number of tort lawsuits against New York declined between 1995 and 2004, the city doubled the amount it paid in settlements and judgments, and no doubt increased its litigation expenses as well.

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As Ted Frank has reported elsewhere, he (thanks to his Center for Class Action Fairness) is my attorney in an objection I have filed to a proposed class action settlement.

The class, subscribers to Classmates.com, is to receive next to nothing in the settlement (the grand total distributed is just over $100,000). Plaintiffs' attorneys get just over $1,000,000 for this magnificent service -- a tidy 900% contingency. The class judge gets to distribute $500,000 to the charity of his choice -- is this a way of ensuring approval of the settlement? To object, four different letters must be posted -- the stamps themselves may cost more than any payoff for prospective objectors. Well, I (though my attorney) am objecting. Hopefully, my case will produce a new precedent precluding such abuse.

However one views the merits of the underlying litigation, the $20.5 million settlement seems problematic -- including a $2.5 million cy pres award to twelve universities, which will doubtless raise the eyebrows of our editor. For fuller details on the settlement, see Stoll's post and the City's press release (PDF).

Ninth Circuit first court to enforce Rule 23(h) as written; courts are no longer permitted to require objectors to file objections to fee requests before the fee requests are submitted to the court. Seems obvious enough, but just had it happen to me in the District of New Jersey. [Trask; In re Mercury Interactive Corp. Sec. Lit.]

Beverly Stayart perhaps improves her Google footprint, and is now known for her meritless lawsuit against Yahoo over the search results she found when she searched for her name. [Stayart v. Yahoo! (7th Cir.) via Bashman]

SeaWorld lashes out at negligent-infliction-of-emotional-distress lawsuit filed over trainer killed by orca during performance; questions why parents "did not immediately remove their 10-year-old son from the [viewing] area as opposed to letting him witnesss 'much of what transpired' -- only to later subject him to media attention." [On Point]

The National Association of Manufacturers just released its congressional ratings for the 111th Congress, and noticeable by their absence are key votes on civil justice reform issues. In years past, high-priority pieces of tort reform legislation (think Class Action Fairness Act) were included the NAM's Key Vote Committee rankings, but in 2009-2010, no separate tort reform bills were rated.1 Neither did bills to expand liability reach the point of a floor vote.

The Motor Vehicle Safety Act, introduced as a reaction to the Toyota recalls. Turns out that truth - in this case, the reality of operator error - helped discourage passage of the expanded regulatory control and liability applied to automakers. (H.R. 5381)

Expansion of liability under maritime law proposed in the wake of the Deepwater Horizon accident.2 Here's a list of the 95 bills, resolutions and amendments introduced in the 111th Congress with the term "oil spill" in them.

The Discount Pricing Consumer Protection Act, S. 148, meant to overturn the U.S. Supreme Court's decision in Leegin Creative Leather Products, Inc. v. PSKS, which held that resale price maintenance agreements were not per se illegal under federal antitrust law. The bill by Sen. Herb Kohl (D-WI) was reported out of the Senate Judiciary Committee, however.

Yes, it is possible that Congress will act on some of these bills in the lame-duck session, which convenes Nov. 15. You would think that extending the tax 2001 rates would come first, but who knows what might happen? November promises to be an unsettled period full of recriminations and last gasps -- an environment that invites legislative excesses.

Perhaps Senators will give expression to their warm feelings of affection for Sen. Specter and pass all his bills as a final tribute. If the winds of change have been especially scouring, the litigation lobby may call on their congressional supporters to use their last opportunity to enact all sorts of liability-expanding legislation.

1 The NAM rated two bills in the area of employment law, the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The first, which became law, removed statutes of limitation on employment discrimination suits. The second, which passed the House, lifts caps on punitive damages.

2 No legislation, plenty of litigation. The Washington Posttoday reports: "METAIRIE, LA. - The BP oil spill cleanup is winding down, but the lawyers are just warming up. The gusher of litigation might not be capped for years."

MI's Heather Mac Donald in the WSJ details a voter initiative permitting police to deal with aggressive homeless panhandling. San Francisco city government, which spends $175 million on homelessness services (compared to $442 million for police), had resisted any form of broken-windows policing, with predictable results. Mac Donald didn't have space to discuss the fact that the voter initiative will likely be tied up in the courts for years; as previously discussed in this space, the Ninth Circuit enjoined Los Angeles from any sort of legitimate policing of vagrancy in Jones v. Los Angeles.

Of course, it's important to recognize that a court finding of prosecutorial misconduct does not always equate to actual prosecutorial misconduct (just as a court finding of discovery abuse does not always mean discovery abuse occurred), but it's also true that many cases of prosecutorial misconduct are never discussed by courts. The lack of so much as a reprimand in many cases is appalling, especially given the higher ethical obligations of prosecutors. If the State Bar of California spent less time on lobbying and "diversity" and more time on its core functions, maybe there would be more discipline.

That said, the reports proposal to abolish absolute immunity for prosecutors is foolish, given the low bar for surviving demurrer in California. It's too easy to allege that an action was "intentional" or "with malice," and the cost of litigation would mean that good-faith prosecutors that only have qualified immunity would face expensive meritless lawsuits.

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I'm honored that law professors Steven J. Johansen (Lewis & Clark) and Ian Gallagher (Syracuse) think that my analysis of Ernst v. Merck, the infamous (and later-reversed) $253 million Vioxx verdict, could have made a material difference if it had been adopted as part of the defense closing argument:

This verdict is bad news for all of us, and some of us will die prematurely because the lawsuit deterred the research and development of life-saving drugs.

And Vioxx was one such life-saving drug. The painkillers that it replaced (and is now replaced by) cause their own health problems, and current medical thinking is that, for at least some people, Vioxx would be a safer as well as a more effective pain-killer than aspirin, despite what we now know to be the latter's better cardioprotective profile. But Merck can't collect $26 million from each person whose life they save, even if it were possible to point to a particular Alvy Singer of Hypothetical City, Iowa, who didn't die of aspirin-related complications because he was taking Vioxx.

But I'm sad to say that I think they're wrong. Even if a judge permitted that sort of public-policy argument in a closing argument, it's a public policy argument, one aimed at lawmakers and judges, rather than finders of fact. It doesn't tell juries whether or not to find liability. Perhaps it's an argument against punitive damages, but a jury that already awarded such an unreasonably punitive sum of "compensatory" damages wasn't going to take its foot off the gas when given the opportunity to give a big punitive-damages award and be on Oprah just because it would be bad public policy. Even aside from the fact that Mark Lanier would've rebutted the argument by making up a new story that he's okay with Merck selling the drug if only they had "told the truth" (i.e., had perfect predictive powers about what future scientific studies would show about Vioxx's health risks), which is the same crocodile tears he cried when he was on "Stossel" a couple of weeks ago.

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The New York Times reports on a potential settlement of an antitrust suit against credit-card companies over interchange fees. Let's leave aside for the moment that the article does not even mention the reality that the suit and the settlement will make consumers worse off by discouraging the use of credit cards and making rewards programs untenable. Here's what's jaw-dropping:

Under the terms of the proposed settlement, merchants could offer consumers an immediate discount or rebate for using a particular type of payment, a particular credit card network (Visa versus American Express), or a low-cost card within that network (a Visa debit card rather than a Visa credit card). ...

The settlement, however, does not allow merchants to levy a surcharge on credit and debit payments beyond the cost of the transaction, as some merchants had sought.

Yes, you read that right. The Department of Justice is allowing merchants to offer a discount to customers who use cash. But merchants cannot impose a surcharge to customers who use credit cards. That'll protect the consumers!

Sen. Kirsten Gillibrand (D-NY) is holding a news conference today to talk about her plan to push H.R. 847, the James Zadroga 9/11 Health and Compensation Act, through the Senate. By a vote of 268-160, the House last week passed the bill to reopen the 9/11 Compensation Fund.
From her media advisory:

U.S. Senator Kirsten Gillibrand, the Senate's chief sponsor of the James Zadroga 9/11 Health and Compensation Act, will work to bypass the Committee process and provide an opportunity for a full Senate vote when the Senate reconvenes next month. Nearly 16,000 responders and 2,700 community members are currently sick and receiving treatment. More than 40,000 responders are in medical monitoring and 71,000 individuals are enrolled in the WTC Health Registry.

On Monday, Senator Gillibrand will visit Long Island World Trade Center Program, a health care facility that provides assistance to many of the first responders and survivors who would directly benefit from passage of the James Zadroga 9/11 Health and Compensation Act. Senator Gillibrand will discuss her latest strategy to ensure this legislation receives the bipartisan support that will be needed to ensure the bill becomes a law.

In last week's House debate, Rep. Charles Boustany (R-LA) include letters of opposition from the Organization For International Investment, the U.S. Chamber of Commerce, and the National Foreign Trade Council in The Congressional Record.

Seems like it would be a good idea -- at least in terms of accountability and representative government -- to hold a Senate hearing to further explore the tax increases as well as questions about funds going not to patients and medical care, but rather to trial lawyers.

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The unhingedness of the latest Dahlia Lithwick column is best demonstrated by the fact that the very first case she and Barry Friedman single out as evidence of eeevil conservatives whittling away at our rights is a unanimous opinion with the pretty sensible reading of Miranda that police can re-question someone who waives his Miranda rights three years after the initial questioning if he's been given new Miranda warnings. Friedman and Lithwick are mystified that, though the Court has taken an ever-so-slight rightward turn (while Alito is to the right of O'Connor, Sotomayor is to the left of Souter), the public thinks the Court is still too liberal, though they miss the obvious explanation: the Court is still considerably to the left of the American public. As Brandon Bartels points out, even with the Court moving to the right, the majority of the last decade's "salient decisions"—decisions that made the front page of the New York Times—come out the way the Left would prefer. Throughout the article, when conservative justices reach liberal results, it's because the inherent correctness of the liberal result prevents conservatives from casting the votes they really want to; when liberal justices reach conservative results, it's because of the magic tricks conservatives play on the system. (And, of course, when conservative justices reach conservative results, it's because they're ignoring the law. So why don't they ignore the law when they reach liberal results? Friedman/Lithwick's fevered conspiracy theory has no predictive value.)

Relatedly, Orin Kerr detects some suspicious data-slicing in a New York Times assessment of Justice Breyer.

What is it about fen-phen settlements and fraud? Ten former clients of Texas lawyer George Fleming allege that he assessed the $23 million cost of echocardiograms for 35,000 unsuccessful plaintiffs upon 8,100 other clients in a fen-phen settlement. "'He said he had worked too long and too hard for a lousy $41 million,' said Jim Doyle, who left the firm after objecting to Fleming's unusual decision to include non-client expenses among those billed to clients." [Houston Chronicle] It's unclear whether the clients are asking for complete disgorgement as a remedy for the alleged breach of fiduciary duty. For a similar case involving the late Texas attorney John O'Quinn, see Overlawyered.

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Congress has departed Washington for the campaign season, returning November 15 (save for brief Senate pro forma sessions on Tuesdays and Fridays). As an update on the issues we follow around here, then:

Legislating from pique, the Senate passedS. 2847, the Commercial Advertisement Loudness Mitigation Act, or CALM Act. The CRS summary: Directs the Federal Communications Commission (FCC) to prescribe a regulation limiting the volume of television advertisements that is limited to incorporating by reference the 'Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television' insofar as such recommended practice concerns the transmission of commercial advertisements by a television broadcast station, cable operator, or other multichannel video programming distributor."
The Senate Judiciary Committee postponed its business meeting scheduled for Thursday with the planned vote on the nomination of Robert Chatigny to serve on the Second Circuit Court of Appeals. Thanks to those pro forma sessions, Chatigny's nomination will not be returned to the President.
On a voice vote, the House approved H.R. 1347, Concussion Treatment and Care Tools Act, establishing concussion management guidelines on prevention, identification, treatment, and management of concussions in school-aged children, including standards for student athletes to return to play after a concussion. Reaction from Michael V. Kaplen, a New York personal injury attorney who specializes in brain injuries.

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Twombly and Iqbal establish a modest pleading standard requiring a complaint to be "plausible." The legal and academic left has been up in arms over this. Beck asks the question I've been asking for a while. "Why should the legal system tolerate the filing of implausible complaints?" I'd recommend the excellent post even if it didn't cite my previous work.

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Congress has departed Washington to campaign, and the American Association for Justice is claiming a limited victory. Note the prominence of preemption in its list of accomplishments from the AAJ's homepage, www.justice.org:

Members of Congress shut down early to devote the full month of October to the fall campaign.

AAJ advocacy efforts succeeded on many fronts, but health care reform, jobs and the stimulus package, and financial services reform pushed some of our issues into the background.

AAJ made progress despite a tough environment:

Fought off at least 25 Committee amendments to the Health Care bill to deny the rights of patients injured by medical negligence, and an amendment offered on the Senate floor capping lawyer fees;

Also defeated attempts to preempt state remedies in many bills introduced in both the House and Senate;

Worked to achieve broad elimination of Bush era preemption language from administrative rulemaking;

AAJ helped to protect certain employees from forced arbitration and worked to include language in the new Wall Street reform law giving the new Consumer Financial Protection Bureau and the Securities and Exchange Commission the power to limit the use of forced arbitration clauses in consumer and investment contracts. Attempts to strip these sections were defeated;

AAJ's efforts to draw public attention to the issue of forced arbitration led several large financial institutions to eliminate such provisions.

Still working on that tax break from Treasury, though.

For a more critical view of the litigation lobby's efforts directed at the White House, see David Freddoso's recent column in The Washington Examiner, "Trial lawyers will still have their best friend after November. Freddoso warns that President Obama might lift the executive order banning the federal government from hiring private attorneys on contingency to carry out its litigation.